City jail grievance system broken, inmates, advocates say

Kevin Rector, The Baltimore Sun

Suddenly and inexplicably one August night in 2011, the steel door of Steven Gabriel's jail cell at the Baltimore City Detention Center was unlocked and opened, according to documents he filed in state and federal court. Someone with a "flip-out pocket knife" stabbed him multiple times, he wrote, and he bled in his cell for several hours before being rushed to the hospital.

In two civil lawsuits demanding compensation for his injuries, Gabriel, 24, has placed blame squarely on the corrections officers overseeing his unit, saying only they could have unlocked his cell. He alleged in a federal court filing in March that "BCDC has a reputation of corruption in all departments" and that officers worked to suppress inmates' complaints of mistreatment.

The allegations originated months before 13 corrections officers were indicted on federal charges and accused of working with a dozen gang-affiliated inmates and street associates to peddle drugs and launder money inside the jail.

Civil liberties advocates say Gabriel's case and others like it highlight the inadequacy of the inmate grievance process — an issue that has historically been ignored and is being de-emphasized as officials scramble to solve problems at the jail.

Grievances should be a valuable tool for uncovering corruption, attorneys and corrections experts say. Indeed, grievances filed at the jail outlined problems that were later noted in the federal indictments — leading some to wonder whether officials had missed an early opportunity to address alleged corruption. The systems can be misused by corrections officers and jail officials, smothering inmate complaints as they arise regardless of their merit, experts say.

"Depending on what the agency puts into the process, it can be good, it can be less than perfect, or it can be really, really bad," said Arnett Gaston, a retired criminology professor at the University of Maryland who served in top corrections positions over four decades in New York and Maryland.

Inmates at the Baltimore jail, who are often sent there to await trial, have raised complaints about major medical ailments, vicious attacks and examples of officers' misdeeds for years, but have received insufficient attention from officials, advocates say. Problems with the grievance process also limit inmates' ability to pursue court remedies, said David Rocah, an attorney with the American Civil Liberties Union of Maryland, who calls the process "a complete joke and fiasco."

But such systems have been narrowly drawn nationwide to prevent endless litigation from inmates and prisoners. In the mid-1990s, as federal and state legislators sought a solution, news reports highlighted lawsuits that had been filed over bad haircuts, tight underwear and broken cookies.

Rick Binetti, a spokesman for the state corrections department, said jail officials strongly disagree with the ACLU's accusations. Statistics show declining incidents of inmate emergency room visits, assaults and HIV infections in recent years — contradicting advocates' claims that the current process endangers inmates, he said.

Most Maryland correctional facilities follow grievance standards set by the American Correctional Association. The state-run jail's grievance process does not, but it will meet those standards by August, he said.

The process is "clearly communicated to all inmates in the system. The directives are in every inmate library," Binetti said. He disputed certain allegations that Gabriel has made in court filingsbut said he could not comment on the stabbing or the case.

A national issue

The jail's grievance process is based in part on the federal Prison Litigation Reform Act, which went into effect in 1996, and the state's comparable Prisoner Litigation Act of 1997, which require inmates to pursue administrative remedies before filing lawsuits. The system was developed to limit judicial review and discourage inmates from filing frivolous court claims.

Last year, 5,217 grievances were filed with the Baltimore jail's grievance office, which is staffed by four officers, Binetti said. That does not include complaints that are resolved by supervisory staff at the unit level, he said. The jail holds a daily average of more than 3,000 inmates and processed more than 50,000 inmates last year.

Inmates, advocates and independent corrections expertssay the grievance process is too complicated for many inmates who are poorly educated or illiterate. It also is manipulated by corrections officers and used by the state's lawyers to push valid complaints out of the courts on technicalities, they said.

Margo Schlanger, who has studied grievance processes and helped draft the American Bar Association's standards for prisoner treatment, said that becausegrievance processes can help protect corrections systems against liability in court cases, there can be an incentive to make them overly strict and use them to "wipe out claims," which is inappropriate.

"I'm a big fan of grievance processes. I like them," said Schlanger, a professor at the University of Michigan Law School. "I think that good jail and prison administrators value them highly and learn a lot from what comes through the grievance process, and take small problems and keep them small. But you don't want it to be a pleading hurdle; you want it to be a management tool."

When the process is used as a hurdle, serious allegations can go unaddressed, inmate advocates say.

In March, state lawyers cited the federal Prison Litigation Reform Act in requesting the dismissal of inmate Calvin Hemphill's lawsuit alleging that Shavella Miles, the city jail's security chief, and other officials allowed him to be beaten. Hemphill named inmate Tavon White as a Black Guerrilla Family gang leader with outsized influence and sexual ties to corrections officers in the jail.

That case never made it to trial — it was dismissed in April — but White was among the inmates indicted that month. He has pleaded not guilty.

Miles was not named in the indictments but has been removed from her post. An attorney for Miles has said she was being used as a "token to appease the public" in the case and will contest her firing.

Rocah said the ACLU has had to step in on behalf of several inmates with severe medical conditions who went months or even years without the treatment they needed because prison officials dismissed their grievances, mostly on technical grounds.

One inmate with an amputation below the knee was repeatedly denied access to a more accessible facility, even though he fell often and filed grievances for years, Rocah said.Most of the grievances were dismissed on the grounds that he had known of the problem for more than 15 days, the time limit placed on filing claims, Rocah said. Years into the fight, a prison administrator dismissed one of the grievances, in which the inmate hadn't noted his amputation, with one line: "What disabilities?"

The inmate was finally transferred to Roxbury Correctional Institute, which is accessible for those with disabilities, after the ACLU stepped in, Rocah said.

Binetti said he could not comment on the case but added that the department complies with the Americans with Disabilities Act and that inmates with disabilities receive priority placement in newer, accessible facilities.

Elizabeth Alexander, the lead attorney litigating improvements to jail conditions under a federal consent decree that has been in effect since the 1970s, said she has heard from more inmates alleging officer misconduct than ever before and always takes her concerns directly to Maryland Attorney General Douglas F. Gansler's office. "We'd never refer anyone to [the jail's] grievance process," she said.

State corrections officials, for their part, say that mistakes have been made but the system works. They collect thousands of handwritten complaints from facility submission boxes every year, and each one is handled, Binetti said.

Still, there are problems, Binetti acknowledged, and the corrections department is addressing them.

Unlike prisoners' grievances, those filed by pretrial inmates at the Baltimore jail — while they are investigated in a similar way — cannot be appealed to a centralized grievance office, Binetti said. And unlike forms used in prisons, those at the jail have no carbon copy for inmates to keep as a record — a fact Gabriel criticizes in court documents.

Binetti said inmates are given a second chance to fill out a form if their first submission is rejected on technical grounds, but that no data exists "to demonstrate the number of incomplete or improperly completed grievances that are dismissed."

The department is bringing the jail grievance process in line with the system used in other state facilities, Binetti said, and should be finished in August. The changes will allow for better statistics on grievances at the jail, give inmates the right to appeal to the system's central grievance office and add carbon copies to jail grievance forms.

A tool in the courts

Even when savvy inmates manage to push their complaints beyond the administrative process and into the courts, the grievance process remains a hurdle, advocates say. Attorneys in Gansler's office, who represent the state in inmate complaint cases, regularly argue for dismissal on the basis that the internal grievance process was not exhausted first.

David Paulson, a Gansler spokesman, called that practice "fairly common."

Gabriel ran into that roadblock. As a result of the attack, Gabriel suffered permanent damage to his right eye and was prescribed medication for depression and anxiety, he wrote in meticulous penmanship in an April court filing from a state prison in Hagerstown, where he was serving a sentence for large-scale narcotics possession.

Medical records filed in his state case confirm that he suffered stab wounds and eye damage.

In responding to Gabriel's pending federal complaint and the earlier state claim, attorneys for the corrections department have acknowledged his injuries and agreed to pay his medical bills. But they have denied responsibility for the assault and have fought — successfully in the state case — to have the complaints dismissed, partly on the grounds that he did not exhaust the internal process.

Kelvin L. Harris, the corrections department's director of standards, compliance and litigation, filed an affidavit in the state case stating that Gabriel had filed six grievances in the past — about his housing unit and not receiving legal documents, among other issues — but none "about being the victim of several stabbings through the direction of gang affiliated correctional officers."

Gabriel said he did file such a grievance, but guards must have tampered with it. "Most officers read them before they place the grievances in the [submission] box and they don't like to participate in bringing down their own," he wrote in court records.

Binetti said inmates can personally place their forms in the submission boxes.

Gabriel is suing the jail and its officials in the federal case in U.S. District Court in Baltimore. A spokesman for Gansler's office declined to comment on the active case.

Jason E. Fetterman, an attorney with Niles, Barton & Wilmer who was appointed to represent Gabriel pro bono, declined to comment.

Recently, Gansler sent a letter to Gov. Martin O'Malley calling for an independent investigation into the "recent revelations of pervasive gang activity" at the Baltimore jail.

But he did not mention that his office has repeatedly defended jail officials against inmates' claims of corruption — including some, like Hemphill's, that mirrored allegations in the federal indictment.

Gansler, in an interview, said he did not know about the alleged Baltimore jail corruption until he "read about it in the newspaper" after the unsealing of the indictment. He declined to comment on specific cases but said not all inmate filings litigated by his office come across his desk.

Members of his office routinely report allegations of corruption to corrections officials, he said, and if a pattern of corruption was identified, they might alert U.S. Attorney for Maryland Rod J. Rosenstein.

As for using the Prison Litigation Reform Act to have corruption complaints dismissed, Gansler said he could not comment. "We don't have the authority to make the policy decisions," he said.

The state could face new grievances — or a class-action lawsuit — filed by inmates who say that their civil rights were abridged when jail administrators allegedly allowed the Black Guerrilla Family to obtain broad control in the Baltimore jail, said Gaston, the former University of Maryland professor.

How much jail officials knew about the gang's power within the facility — and under what parameters they allowed it to continue as federal investigators built their case — will likely become key questions in future cases, said Gaston, a clinical psychologist and prison gang expert.

"If you are knowingly putting the lives or health of other inmates in danger just to build a case," he said, "what of the individual rights of the person being affected?"